Adrian Biddle v Miele Australia Pty. Limited - [2023] FWC 1972

[2023] FWC 1972

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Adrian Biddle
v

Miele Australia Pty. Limited

(U2023/6230)

COMMISSIONER MIRABELLA

MELBOURNE, 15 AUGUST 2023

Application for an unfair dismissal remedy – unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

This decision concerns an application made by Mr Adrian Biddle (the Applicant) for an extension of time to make a claim for unfair dismissal outside of the 21-day period required by s.394(2) of the Fair Work Act 2009 (the Act).

On 10 July 2023, the Applicant made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy. The Applicant alleges he was unfairly dismissed by Miele Australia Pty. Limited (the Respondent) on 24 April 2023.

This decision concerns whether I should exercise my discretion to allow the Applicant a further period of lodgement of his application.

After taking into account the views of the Applicant and the Respondent regarding whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter.[1]

At the determinative conference on 14 August 2023, both the Applicant and Respondent were self-represented.

The Applicant gave evidence on his own behalf.

When did the dismissal take effect?

It is not in dispute, and I so find, that the dismissal took effect on 24 April 2023.

On 10 July 2023, the Applicant applied for an unfair dismissal remedy. Applications of this kind must be made within 21 days after the dismissal took effect or if there are exceptional circumstances, such further period as the Commission allows.[2]

To have filed his application within the 21-day period, the Applicant had to have done so before midnight on 16 May 2023.

Extension of time

Additional time can be allowed under s.394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[3]

In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

· The reason for the delay,

· Whether the person first became aware of the dismissal after it had taken effect,

· Any action taken by the person to dispute the dismissal,

· Prejudice to the employer (including prejudice caused by the delay),

· The merits of the application, and

· Fairness as between the person and other persons in a similar position.

Relevant factors

Reason for the delay: The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an “acceptable” or “reasonable” explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour; however, all of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 1972
Decision Date: 15 AUGUST 2023

CaseChat Overview and Summary

This matter concerns an application by Adrian Biddle for an extension of time to lodge a claim for unfair dismissal. The dismissal took effect on 24 April 2023, and the application was lodged on 10 July 2023. The statutory period for lodging the application is 21 days, however the Fair Work Act 2009 permits an extension of time in the case of exceptional circumstances. The Commission considered the application at a determinative conference. The Commission found that there were no exceptional circumstances in the case, and dismissed the application. The Court was required to determine whether there were exceptional circumstances which justified an extension of time to lodge the unfair dismissal application. In considering the matter, the Court took into account a number of statutory factors, including the reason for the delay, whether the Applicant first became aware of the dismissal after it had taken effect, any action taken by the person to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the person and other persons in a similar position. The Applicant did not provide an acceptable explanation for the delay, and the Court found that he had contributed to the delay in lodging the application. The Applicant took action to dispute the dismissal by lodging a general protections application, but the Court found that this did not weigh in favour of an extension of time. The Court found that the merits of the application did not weigh in favour of an extension of time, and that there were no relevant matters which assisted in considering fairness as between the Applicant and other persons in a similar position. The Court found that there were no exceptional circumstances in the case, and dismissed the application for an extension of time. The application for an unfair dismissal remedy is dismissed.

Orders